The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections*
The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections* Robert W Gordon** INTRODUCTION For the last fifteen years, American and European governments, lending institutions led by the World Bank, and NGOs like the American Bar Association have been funding projects to promote the "Rule of Law" in developing countries, former Communist and military dictatorships, and China. The Rule of Law is of course a very capacious concept, which means many different things to its different promoters. Anyone who sets out to investigate its content will soon find himself in a snowstorm of competing definitions. Its barebones content ("formal legality") is that of a regime of rules, announced in advance, which are predictably and effectively applied to all they address, including the rulers who promulgate them - formal rules that tell people how the state will deploy coercive force and enable them to plan their affairs accordingly. The slightly-more-than barebones version adds: "applied equally to everyone."' This minimalist version of the Rule of Law, which we might call pure positivist legalism, is not, however, what the governments, multilateral * This Article is based on the second Annual Cegla Lecture on Legal Theory, delivered at Tel Aviv University Faculty of Law on April 23, 2009. ** Chancellor Kent Professor of Law and Legal History, Yale University. I am indebted to the University of Tel Aviv faculty for their generous hospitality and helpful comments, and especially to Assaf Likhovski, Roy Kreitner, Ron Harris, Hanoch Dagan, Daphna Hacker, David Schorr, Daphne Barak-Erez and Michael Zakim. 1 See generallyBRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 26-91 (2004) (providing a lucid inventory of the various common meanings of the phrase).
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